Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics.

Saturday, January 28, 2006

Planning for the Next Oil Crisis

Fortune Magazine reports about a session at the Davos World Economic Forum on scenarios for possible oil crises in the near future. Bill Browder of Hermitage Capital and George Soros led the session. Soros was particulalry concerned that U.S. over-reach in Iraq would further embolden countries such as Iran that want to overturn the current order. While the hegemon's away, the rogues will play.

Browder, for his part, set out a series of scenarios:

To come up with some likely scenarios in the event of an international crisis, [Browder’s] team performed what's known as a regression analysis, extrapolating the numbers from past oil shocks and then using them to calculate what might happen when the supply from an oil-producing country was cut off in six different situations. The fall of the House of Saud seems the most far-fetched of the six possibilities, and it's the one that generates that $262 a barrel.

More realistic -- and therefore more chilling -- would be the scenario where Iran declares an oil embargo a la OPEC in 1973, which Browder thinks could cause oil to double to $131 a barrel. Other outcomes include an embargo by Venezuelan strongman Hugo Chavez ($111 a barrel), civil war in Nigeria ($98 a barrel), unrest and violence in Algeria ($79 a barrel) and major attacks on infrastructure by the insurgency in Iraq ($88 a barrel).

Regressions analysis may be mathematical but it's an art, not a science. And some of these scenarios are quite dubious, like Venezuela shutting the spigot.

Although all admit that none of these scenarios is especially likely, it is important to nonetheless plan in case any of these events occur. Unfortunately, forward planning has not proven to be one of the current administration’s strong points.

Friday, January 27, 2006

ICJ Watch: (Slowly) Clearing the Decks, but More Cases Coming

Next week will be a busy one at the ICJ.

First, the ICJ will release its jurisdictional judgment in the case brought by Congo against Rwanda on Friday, February 3. Congo filed the case back 2002 alleging that Rwanda violated a variety of international human rights treaties by carrying out armed attacks in Congo during the height of the Congo civil war in the 1990s. This case seems like a sure loser for Congo, on jurisdictional grounds, but we'll see. In any event, the ICJ did not exactly place this case on its front-burner. After the initial set of hearings on provisional measures, the ICJ ordered briefing on jurisdiction to be completed by May 2003. The parties complied, and the ICJ then waited over two years before holding oral hearings. In other words, Congo will probably have litigated for almost four years to simply get a judgment on whether the ICJ has jurisdiction.

Second, Argentina has announced it will file an application in the ICJ against Uruguay arguing that Uruguay has violated certain treaties by building pulp mills that discharge waste into the river that separates the two countries. No formal application is posted yet, but it seems like it should happen any day now and may result in a useful solution to a potentially nasty border dispute.

Third, the United Kingdom may be facing an application from Cyprus alleging the UK has failed in its treaty commitments as the "guarantor power" to protect Cyprus from Turkish incursions.

The ICJ docket is hardly full, but given it takes the ICJ years to issue jurisdictional judgments, I wouldn't expect any resolution to these cases anytime soon.

Seth Weinberger's New International Politics Blog: Security Dilemmas

Our past guest blogger Professor Seth Weinberger liked blogging so much that he started his own. Security Dilemmas, already a terrific addition to the blogosphere, will focus on "issues of international and national security, international politics, and international law (and anything else I want to write about)." Check out Seth's posts on Hamas and the Palestinian elections here and here.

Happy Days in Davos

The World Economic Forum at Davos, Switzerland has to be one of the most fascinating events on the planet. Apart from the fact that it is in Davos, Switzerland (one of the most beautiful ski resorts in the world, and I speak from personal experience), it is filled to the brim with an amazing line-up of guests and speakers. A parade of glamor, power, fame, and fortune. Where else do you find leading politicians, academics, trade unionists, business leaders, pop stars, NGOs, all gathered together to discuss (not solve) the problems of the world? The assumption is if you are there, you've already arrived. "The great thing about Davos is this assumption that you must be interesting, just because you are here." OK, I guess that means that the rest of us might be interesting, but no promises. For more on who goes to Davos and what they do there, see here.

The agenda for this year "The Creative Imperative" and here is a list of discussion topics. Short summary of the topics: (1) Bill Gates has another half-billion to spare; (2) There is no energy crisis; (3) Africa needs Western farmers; (4) Annan offers more blather about UN reform; (5) Disaster preparedness is important; (6) The U.S. consumer is weak; (7) The Arab world is backward; (8) China is hungry; and (9) Europe is lazy.

The happy news is that the good and great at Davos have opened their doors for session summaries, webcasting and now... live-blogging. All of this is quite a remarkable development given that the events are supposed to be not-for-attribution. If you visit here, there is a short blog summary of the discussion at various events. One of my favorite anecdotes is this:

At today's session on global challenges, an invited speaker told us a candy story: While in an African country, he took a bag of candies to the street and distributed them to kids there. The bag went empty soon. He went back to the hotel and brought more. As the candy news had gone around, this time a crowd of excited kids rushed to him, kicking and pushing one another. Then a woman came to him, asking to help distribute candies. He gave her a bag, but she just grabbed and ran away. He asked why and the woman's reply was she wanted to sell the candies in exchange for something productive. The speaker's conclusion: the current western aid policy for Africa is seriously flawed. Aid agencies sometimes do not understand how to give aids, corruption occurs in the process, and the way that aids are given may not be truly productive.

Oh really? Good thing we went all the way to Davos to learn that foreign aid needs reform. Well, at least the good and great are gathered together to earnestly listen to such truisms. And if the world's glitterati is listening together, it must be important.

As UNIFEM Goodwill Ambassador, her efforts will be geared toward raising awareness on the infringement of women's human rights around the world. A particular focus will lie on putting a spotlight on violence against women, probably the most pervasive human rights violation that affects as many as one in three women. Nicole Kidman will visit initiatives supported by UNIFEM to increase visibility for the efforts underway to end gender-based violence.

Kidman is already familiar with the work of UN agencies, having served as UNICEF's ambassador to Australia for several years. And she played the role of UN interpreter in last year's aptly named "The Intepreter."

But what exactly is a "goodwill ambassador?" They are not at all ambassadors in the strict sense of the word. No special diplomatic status or accoutrements attend the position. They are there for photo-ops, fundraising appeals, and awareness raising. This can involve serious work in less-than-plush settings. Even among these celebrity ambassadors of goodwill, there is a hierarchy. At the top are the handful of goodwill ambassadors recruited to represent the whole of the UN organization. This BBC article from 2000 explains the history:

The UN first hit on the idea of celebrity ambassadors in the 1950s, when Hollywood and Broadway star Danny Kaye was taken on to promote children's rights. He worked tirelessly throughout that year and subsequent decades. It was his success that led to the use of stars, like Sir Peter Ustinov and Audrey Hepburn, on a regular basis.

The current set of celebrities is led by a top flight of seven, called "Messengers of Peace", of which Michael Douglas is one. Others include boxing legend Muhammad Ali, basketball star Magic Johnson and opera singer Luciano Pavarotti. These are personally recruited by UN Secretary-General Kofi Annan. They must have a largely unblemished reputation, a proven interest in humanitarian issues and fame on a global scale. The seven are expected to work hard - on a voluntary basis - to help focus attention on the work of the UN in general.

In addition to the "top-level"ambassadorss selected by the SecGen are those recruited to represent a particular UN agency, as with Ms. Kidman (and Angelina Jolie, who has served as a goodwill ambassador for UNHCR), or a project. The UN appoints a lot of them, not all of them household names in this country. But each must have some level of fame andcelebrityy to lend to the program. This list of UNICEF goodwill ambassadors has a few big US and UK celebrity names. But see how many of the celebrities on this list from UNESCO you recognize.

Kidman deserves some credit for lending her name and time to something that the celebrity touch can help publicize. And she has some humility about it: "I don't pretend to be an expert on the issues that UNIFEM addresses. But I'm here to learn and lend support to help make visible the very real and immediate problems and the successful strategies that UNIFEM and the women they support work on everyday."

The Tree of Democracy From the Stump of Terror

"They underestimate the power and appeal of freedom. We've heard it suggested that ... democracy must be on shaky ground because [ethnic parties] are arguing with each other. But that's the essence of democracy: making your case, debating with those who you disagree -- who disagree, building consensus by persuasion, and answering to the will of the people. We've heard it said that the [parties] are too divided to form a lasting democracy. In fact, democratic federalism is the best hope for unifying a diverse population, because a federal constitutional system respects the rights and religious traditions of all citizens, while giving all minorities, ... a stake and a voice in the future of their country. It is true that the seeds of freedom have only recently been planted ... -- but democracy, when it grows, is not a fragile flower; it is a healthy, sturdy tree."

Of course, when Bush uttered these words last October he was talking about Iraq. But as discussed here, the great hallmark of Bush' second term may well be the global march of democracy. Trouble is, that march is taking some surprising turns, as is evident in Hamas' stunning victory yesterday.

Who would have expected a seedling of democracy would grow from the stump of Islamic fundamentalism and terror? We are witnessing the emergence of democratic Islamic fundamentalism. It is now a fragile flower. It may soon grow to be a sturdy, but most unhealthy tree. The new cedar of Lebanon.

The Opportunistic Genocide of Darfur

Nicholas Kristof of the New York Times has an important essay in the New York Review of Books on what he describes as the "opportunistic" genocide of Darfur. Having just returned from Sudan, he paints an utterly depressing picture:

"In my years as a journalist, I thought I had seen a full kaleidoscope of horrors, from babies dying of malaria to Chinese troops shooting students to Indonesian mobs beheading people. But nothing prepared me for Darfur, where systematic murder, rape, and mutilation are taking place on a vast scale, based simply on the tribe of the victim. What I saw reminded me why people say that genocide is the worst evil of which human beings are capable."

This essay follows on the heels of numerous other recent reports on the situation in Sudan: (1) HRW's annual report last week reporting that "In 2005, indiscriminate and targeted killings, rape, forced displacement, and looting of civilians ... at the hands of government-backed militias or 'Janjaweed'"; (2) Parade magazine's identification this week of Omar al-Bashir as the world's worst dictator; (3) Amnesty's report yesterday of dozens of national and international human rights activitists detained and harassed by the Sudanese government; and (4) first-hand, uncensored accounts of the human rights situation from aid worker and blogger at Sleepless in Sudan.

So what can be done? Sleepless in Sudan has these micro-suggestions. Kristoff in his essay offers sharp criticism of virtually everyone: the United States, the European Union, the United Nations, Russia, China, even mainstream media. Kristoff offers a few macro-suggestions, including a stronger military presence (preferably the U.N. or NATO), a stronger expression of moral outrage, and a general effort to raise the cost of what he describes as a strictly opportunistic genocide. "Sudan's leaders are not Taliban-style extremists. They are ruthless opportunists, and they adopted a strategy of genocide because it seemed to be the simplest method available. If the US and the UN raise the cost of genocide, they will adopt an alternative response, such as negotiating a peace settlement. Indeed, whenever the international community has mustered some outrage about Darfur, then the level of killings and rapes subsides."

As I've noted here before, China and Japan are locked in a much more hotly-contested negotiation over maritime boundaries in the South China Sea. The stakes there appear to be higher because of known underground reserves of natural resources there and the likelihood of a friendly settlement is much lower because, well, let's be honest, there is not a whole lot of love between the two countries.

It is still nice to see how smoothly such negotiations can go. Perhaps the Chinese and Japanese can get Aussie and Kiwi mediators?

Lower Courts and Reliance on Foreign Authority

One of the issues rarely addressed in the debate on reliance on foreign authority to interpret constitutional guarantees is what attitude lower courts should take with respect to the question. As most scholars know, the Missouri Supreme Court in Roper v. Simmons relied on foreign authority in flagrantly departing from Supreme Court precedent in Stanford to hold that the juvenile death penalty was cruel and unusual punishment. That approach led to a "no comment" from the Supreme Court in Roper, but a sharp rebuke from Justice Scalia. In dissent Justice Scalia noted: "To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that 'it is this Court's prerogative alone to overrule one of its precedents.'... Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent."

Last week the Ninth Circuit in Allen v. Ornoskiwas faced with a death penalty claim by Clarence Ray Allen, an inmate in his seventies who has been on death row for over twenty years. He argued, among other things, "that execution of an elderly person does not comport with 'evolving standards of decency,' in that the execution 'offends humanity,' provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international law." The Ninth Circuit, per Clinton-appointee Judge Wardlaw, rejected the international argument out of hand: "While international norms may also be instructive in this analysis, in light of the nonexistence of domestic authority supporting Allen's claim, and the lack of definitive international authority provided by Allen, we, as an intermediate court, decline to consider the asserted practices of foreign jurisdictions."

Allen suggests that lower courts should be more cautious than the Supreme Court in relying on foreign authority, particularly where that authority is not clear and definitive. I am not aware of any empirical studies analyzing how lower courts have handled the question of reliance on foreign authority in constitutional adjudication. It would be worth the time to make such inquiries. Nor am I aware of other lower courts that have expressed the need for greater caution on this question. But I can appreciate the concern because obviously adherence to and departure from precedent is of greater moment for lower courts than the Supreme Court.

Is the UN Becoming More Like the Pentagon?

This week's news of cost overruns and corruption in the UN Peacekeeping office have a familiar ring. Earlier this week, eight UN officials involved in procurement in the peacekeeping division were placed on administrative leave, and the draft of a forthcoming report on fraud and mismanagement estimates that over $298 million may be lost or unaccounted for as a result of irregularities in the peacekeeping offices. The FT reports:

The unofficial report, seen by the Financial Times, paints a damning picture of poor or bypassed financial controls, insufficient oversight by senior management, as well as a revolving door of employment between UN procurement staff, and the private companies whose services the UN hires.

The scale and allegedly systematic nature of wrongdoing has raised fears of a scandal as large if not larger than the Iraqi oil-for-food programme affair, which may hit even closer to UN headquarters.The $298m figure, almost a third of the $1bn of contracts examined, was removed from a subsequent final document, as were references to named companies and officials. UN member states will be officially sent the final version.

Christopher Burnham, the UN's head of management, acknowledged on Monday that the cost of fraud and mismanagement in peacekeeping procurement could go into the "tens of millions of dollars", and the figure was likely to rise over coming months.

Of course, similar problems--involving larger sums of money (remember the $9 billion unaccounted for?)-- have plagued U.S. reconstruction efforts in Iraq. Today's NYTimes reports that new findings of the Special Inspector General for Iraq Reconstruction reveal widespread financial mismanagement:

The audit, released yesterday by the office of the Special Inspector General for Iraq Reconstruction, expands on its previous findings of fraud, incompetence and confusion as the American occupation poured money into training and rebuilding programs in 2003 and 2004. The audit uncovers problems in an area that includes half the land mass in Iraq, with new findings in the southern and central provinces of Anbar, Karbala, Najaf, Wasit, Babil, and Qadisiya. The special inspector reports to the secretary of defense and the secretary of state.Agents from the inspector general's office found that the living and working quarters of American occupation officials were awash in shrink-wrapped stacks of $100 bills, colloquially known as bricks.One official kept $2 million in a bathroom safe, another more than half a million dollars in an unlocked footlocker. One contractor received more than $100,000 to completely refurbish an Olympic pool but only polished the pumps; even so, local American officials certified the work as completed. More than 2,000 contracts ranging in value from a few thousand dollars to more than half a million, some $88 million in all, were examined by agents from the inspector general's office. The report says that in some cases the agents found clear indications of potential fraud and that investigations into those cases are continuing.

Some of those cases are expected to intersect with the investigations of four Americans who have been arrested on bribery, theft, weapons and conspiracy charges for what federal prosecutors say was a scheme to steer reconstruction projects to an American contractor working out of the southern city of Hilla, which served as a kind of provincial capital for a vast swath of Iraq under the Coalition Provisional Authority.

But much of the material in the latest audit is new, and the portrait it paints of abandoned rebuilding projects, nonexistent paperwork and cash routinely taken from the main vault in Hilla without even a log to keep track of the transactions is likely to raise major new questions about how the provisional authority did its business and accounted for huge expenditures of Iraqi and American money.

"What's sad about it is that, considering the destruction in the country, with looting and so on, we needed every dollar for reconstruction," said Wayne White, a former State Department official whose responsibilities included Iraq from 2003 to 2005, and who is now at the Middle East Institute, a research organization. Instead, Mr. White said, large amounts of that money may have been wasted or stolen, with strong indications that the chaos in Hilla might have been repeated at other provisional authority outposts.

Others had a similar reaction. "It does not surprise me at all," said a Defense Department official who worked in Hilla and other parts of the country, who spoke anonymously because he said he feared retribution from the Bush administration. He predicted that similar problems would turn up in the major southern city of Basra and elsewhere in the dangerous desert wasteland of Anbar province. "It's a disaster," the official said of problems with contracting in Anbar. No records were kept as money came and went from the main vault at the Hilla compound, and inside it was often stashed haphazardly in a filing cabinet.

The news of widespread financial mismanagement in post-conflict situations, where creation of civil institutions with strong controls on public expenditures is vitally important to successful transitions to stable governance, is particularly troubling. The difference between the UN and US situations is that any mismanagement at the UN -- no matter if it is uncovered and punished -- may be used by some Member States (particularly the US) as an excuse not to support some necessary programs. US Ambassador John Bolton has already hinted as much. By contrast, mismanagement of US programs is unlikely to affect much of anything, since the Republican-controlled Congress appears disinclined to look to closely at how US taxpayers money has been spent in a war effort it heartily supported. In order for criticism of UN practices to be taken seriously, the US needs to set the best example for the international community. The UN needs better oversight; so, apparently, does the US government.

It all puts me in mind of a memorable, cynical quote from the movie Syriana (which, though a flawed film, has an interesting take on Washington lawyers) about the Foreign Corrupt Practices Act:

Corruption ain't nothing more than government intrusion into market efficiencies in the form of regulation. That's Milton Friedman. He got a goddamn Nobel Prize. We have laws against it precisely so we can get away with it. Corruption is our protection. Corruption is what keeps us safe and warm. Corruption is why you and I are prancing around here instead of fighting each other for scraps of meat out in the streets. Corruption is why we win.Let's hope not.

Tuesday, January 24, 2006

Jean-Marie Henckaerts Responds to Ken Anderson on ICRC Customary International Humanitarian Law Study

Ken Anderson has posted Jean-Marie Henckaerts' response to his earlier blog commentary on the International Committee of the Red Cross study on customary international humanitarian law. (See earlier Opinio Juris posts here and here.) Henckaerts, who serves as legal advisor to the ICRC, was one of the co-authors of the study. One of the interesting elements of the response is Henckaerts' justification (correct, in my view, from a doctrinal perspective) for looking at both what states do when they engage in armed conflict and what they say about how armed conflict should be conducted:

An accurate snapshot of customary IHL does not merely require a description of what parties "actually do in actual wars". This is so because customary international law is formed by a general practice accepted as law. The latter element is often referred to as "opinio juris". The requirement of a general practice, combined with evidence that this practice conforms to a legal obligation has two important implications:1. To the extent that field practice is not official and does not represent the legal conviction of the State concerned, it does not count. This implies, in particular, that if actual practice is generally seen as a violation of existing rules, this practice is not of a nature to modify existing rules. That is why notwithstanding numerous reports of, for example, attacks against civilians, pillage and sexual violence these acts are still prohibited under customary international law. The conclusion that these acts are considered to be violations of existing rules can be derived i.a. from a number of verbal acts, such as legislation, case-law and official statements. These verbal acts are therefore important and have to be considered to get the full and correct picture of customary international law.2. The opposite is also true. Although States may in practice abstain from engaging in certain behaviour, through their verbal acts, qualifying their abstention as mere policy not based on a legal obligation to abstain, they can reserve their right to engage in those acts in the future. That is why attacks against works and installations containing dangerous forces Â although seldom or never resorted to in the last twenty years Â would still be considered lawful by States in case they constitute military objectives and sufficient precautions are taken. If mere battlefield behaviour were examined such targets would have to be considered off-limit. The same is true for nuclear weapons: on the basis of a mere consideration of battlefield practice, nuclear weapons would have to be considered unlawful Â a position clearly not shared by the nuclear powers. This shows that verbal acts have an important impact on how battlefield practice has to be looked at.

President Bush's Foreign Policy Speech

In case you missed it, President Bush offered a major foreign policy speech yesterday that, among other things, outlined his strategy for the war on terror. It is a long speech that discusses numerous foreign policy issues, but a key component was his summary of the strategy to defeat terrorism: (1) choke off the funding; (2) challenge states that harbor terrorists; and (3) confront threats before they cause harm.

It is, of course, the third prong of his strategy that was a key factor in his decision to invade Iraq, and this third prong will continue to be controversial in the coming years as we face the specter of a nuclear Iran. There will continue to be threats that do not pose imminent harm--such that traditional international law self-defense justifications are triggered--but nonetheless present grave threats to national security.

With news that China and Russia are presently unwilling to even recommend the question of Iran's nuclear development for referral to the Security Council, we are poised in the coming year for another international crisis without Security Council supervision. The United States and the EU3 (Britain, France, and Germany) may be forced to address the question of Iran in a most unfortunate international legal posture: neither Security Council guidance nor traditional self-defense justifications.

Here is an excerpt of President Bush's speech, including his strategy on terrorism and his response to a question about Iran:

You can't run your network without money, and so we're working with our friends and allies to seize terrorist assets and choke off their funding sources. In other words, what I'm telling you is, we're using all assets at our disposal to protect you in a different kind of war. In order to make the right decision about how to win this war, it's important to understand the nature of the enemy and to take the enemy's word seriously and to understand their lethality and not let the kind of lull in the action lull us to sleep.

Secondly, right after they attacked us, I laid out a doctrine, and it said, if you harbor a terrorist, you're equally as guilty as the terrorists. The reason I said that is because I understand that a terrorist network can sometimes burrow in society and can sometimes find safe haven from which to plot and plan. The perfect example of that was Afghanistan. For those of you who didn't pay much attention to the initial stages of this war, it became apparent to the world that Afghanistan became a safe haven. You'll hear stories about people that went into Afghanistan to be trained -- trained as to how to brutally kill people, trained in different methodologies, trained in how to communicate. So in other words, the enemy was able to burrow in, and felt safe and confident and secure. And I understood in this different kind of war that we had to make it clear to any country that if they harbored a terrorist, they would be held to account.... The doctrine still stands: If you harbor a terrorist, you're equally as guilty as the terrorists who commit murder.

Thirdly --and this is very important for the students to understand, and others -- because oceans no longer protect us, the United States of America must confront threats before they cause us harm. In other words, in the old days we could see a threat and say, well, maybe it will cause harm, maybe it won't. Those days changed, as far as I'm concerned. Threats must be taken seriously now, because geography doesn't protect us and there's an enemy that still lurks.

***

I'm deeply concerned about Iran... I'm concerned, when ...their president announces his desire to see that Israel gets destroyed. Israel is our ally. We're committed to the safety of Israel, and it's a commitment we will keep....

I'm concerned about a non-transparent society's desire to develop a nuclear weapon. The world cannot be put in a position where we can be blackmailed by a nuclear weapon. I believe it is very important for the Iranian government to hear loud and clear from not only the United States, but also from other nations around the world. I also want the Iranian people to hear loud and clear, and that is, we have no beef with you. We are worried about a government that is not transparent whose aims and objectives are not peaceful. And, therefore, we don't think that you should have the capacity to make a nuclear weapon.

The diplomatic strategy is being led right now by what's called the EU3 -- France, Germany and Great Britain -- and they're doing a good job of keeping together a common message to say to the Iranians that we expect you to adhere to international norm. The next logical step if the Iranians continue not to adhere to international norm or the demands of the free world is to go to the United Nations Security Council.

At the same time, the development of an Iraqi democracy is an important message to people inside of Iran. I told you what I believe. I believe everybody desires to be free. I believe women want to be treated equally. And I think that a message of democracy and freedom in that part of the world will embolden reformers. But this is a serious issue.

McGuinness on Justice Blackmun's Internationalism

Our own Peggy McGuiness has just published an article in the Missouri Law Review on "The Internationalism of Justice Blackmun." When an international scholar thinks of Justice Blackmun a few cases quickly come to mind: Mitsubishi v. Soler, Aerospatiale, Sale,Goldwater, etc. But as McGuiness outlines, his impact on internationalism is far greater than a few odd cases. It also includes nurturing the likes of Harold Koh and Donald Donovan, and authoring a seminal article that has proved instrumental in launching the current rage of reliance on foreign authority in constitutional interpretation. All of this, and more, is outlined in McGuiness' article. With the Blackmun Papers now available, McGuiness looks behind the curtain and offers a deeper understanding of Justice Blackmun's internationalism.

Justice Harry Blackmun has been described as "willful", "liberal", "conservative", "humble", and a "White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs". One adjective that is conspicuously missing is "internationalist". Internationalism is, in part, reflected in Blackmun's "preference change" or shift from relatively conservative to relatively liberal. At the same time, Blackmun's internationalism defies most traditional judicial typologies. That Blackmun as internationalist has been a minor theme in the academic literature is understandable given the small number of cases concerning international or transnational legal questions that reach the Court. Nonetheless, an examination of those opinions, as well as of Justice Blackmun's best known outside writing and speaking, uncovers his somewhat surprising and arguably influential internationalist turn.

This comment provides a roadmap for closer examination of the Blackmun Papers and evaluates the sources of internationalism in Blackmun's opinions as manifested in four separate but related jurisprudential approaches: (1) in federalism questions, deferring to the federal political branches' ordering of international economic and political relationships; (2) adopting a view of globalization that preferences international and/or foreign-based approaches to ordering private economic and business relations; (3) interpreting treaty obligations according to globally accepted international law interpretation doctrines; and (4) respecting and acknowledging international and foreign judicial opinions in constitutional jurisprudence. An understanding of these approaches can usefully inform typologies of internationalism among other Justices, past, present, and future.

Rational Heads Prevail: Congo to Lead African Union

Just a day after the U.S. and other Western states expressed concern about the possibility of Sudan chairing the African Union, the AU elected Congo to the chair for a year. (See Julian's post.) The compromise allows Sudan to take the chair next year, which doesn't solve the problem, but at least kicks the can down the road for a while. It also allows the AU to continue playing the lead peacekeeping role in Darfur and act as sponsor for the peace process there.

This last-minute change may demonstrate that, despite protocols and gentleman's agreements, states are capable of acting on the underlying merits when it comes to chairing international organizations. Let's see if there is a lesson in there for a Human Rights Council.

Monday, January 23, 2006

Anti-Americanism: Canadian Edition

Canadians voted today in a hotly contested election pitting a resurgent Canadian Conservative Party against a defensive but still dominant Liberal Party. Early results show the Conservatives winning a plurality of the seats. They still may not have enough seats, however, to form a government.

I don't have a dog in this race, but I am struck that one of the major lines of attack on the Conservative Party leader Stephen Harper is that he is "an extremist with ties to the United States." (emphasis added). That is shocking indeed, and it is wonder he managed to get as many seats.

I suppose if Canadians hate Americans, then it is hard to imagine who loves us. Still, I wonder how much of this language is silly posturing and a reflection of a particularized Canadian form of nationalism driven largely by defining Canada as the "Not-America" (a phenomenon I ruminated on this past summer here). This same form of strange anti-American nationalism is endemic to South America as well, where political leaders show off their anti-American toughness as a way to get votes.

I'm sure some of this is driven by U.S. foreign policy, but some of this would no doubt occur no matter who was President. The U.S. pretty much does nothing to Canada except put some tariffs on part of its lumber industry. Meanwhile, the U.S. is Canada's largest trading partner and its guarantor of national security.

Yet America still looms large as the "Enemy". Very odd and somewhat pathetic.

Sudan's Bid for Leadership of African Union

In an unfortunate rotation, the African Union's annual summit is being held in Khartoum, Sudan this year. This is unfortunate because the host always is nominated for the leadership of the group, but that would mean the AU this year would be headed by perhaps its most unsavory member: the government of Sudan.

This minor leadership battle is a larger challenge for the African Union, which has aspirations to build better political relations in Africa, including the deployment of peacekeeping forces and the creation of a court of human rights. But such an organization is not likely to succeed in becoming an effective organization if it is led by the countries most likely to be the subject of peacekeeping operations and criminal investigations.

Kurdish Judge Appointed New Chief of Iraqi Special Tribunal

Speaking of war crimes trials, according to press reports, Ra'uf Rashid Abdul Rahman, a judge on the Iraqi Special Tribunal, will be elevated to Chief Judge to replace Rizgar Muhammad Amin, who submitted his resignation from the court a week ago. Last week the Iraq government announced that Amin would be replaced by Said al-Hammash, another judge on the tribunal. (As I understand it, Hammash's name was withdrawn amid protests that he was a former member of the Baath party; presumably such membership would have disqualified him from any position on the tribunal.) In the meantime, political leadership in Iraq is trying to convince Amin to stay on the tribunal, even in a lesser role, to preserve the continuity of the court and to counter reports that Amin resigned due to political pressure.

Saddam Hussein's trial is set to resume tomorrow. It is important that the tribunal itself has its act together. Given the uncertainty of the past week and the machinations over the judges, that may not be the case. And changes to the composition of the court give defense counsel precisely the kind of ammunition they need to attack the procedural and substantive fairness of the tribunal. I tend to agree with William Schabas, who has been providing thoughtful commentary over at Grotian Moment:

This is a wake-up call to all who are concerned that the trial of Saddam Hussein be carried out fairly and impartially. It may well be that the current situation in Iraq, which borders on anarchy, is simply not conducive to proper justice being rendered. If that is the conclusion, the trial should be stopped, or it should be moved to a venue where justice can be done.Michael Scharf, David Crane, and Mike Newton have additional insights (drawn from their considerable collective experiences with the ICTY, Sierra Leone Special Tribunal and the IST) at Grotian Moment on both the initial wisdom of carrying out the IST in Iraq with Iraqi judges, and the potential for moving the trial to a location outside Iraq.

Churchill on War Crimes Trials

Yesterday's NYTimes ran this piece about the recently released minutes of Winston Churchill's wartime cabinet meetings. Here are the notes about Churchill's reluctance to try Nazi war criminals and his preference for execution without trial:

As early as July 6, 1942, Churchill was clear about what to do with Hitler.

If Hitler falls into our hands we shall certainly put him to death. Not a sovereign who could be said to be in hands of ministers, like Kaiser. This man is the mainspring of evil. Instrument - electric chair, for gangsters no doubt available on Lease Lend.

On April 12, 1945, as the war drew to a close, Churchill rejected the idea of a war crimes trial.

Agree the trial will be a farce. Indictment: facilities for counsel. All sorts of complications ensue as soon as you admit a fair trial. I would take no responsibility for a trial - even though U.S. wants to do it. Execute the principal criminals as outlaws - if no Ally wants them.

After the Nuremberg trials were underway, Churchill's view of the power of prosecution altered. The Claremont Institute blog posted a memo on this subject by Larry Arnn. This is how he portrays Churchill's later views, which can be summed up as a kind of Churchillian relief at "victor's justice":

July 30, 1946: "He said he had had, during the War, no idea that the German atrocities had been on the scale that the Nuremberg evidence had shown them to be. And although he had had misgivings about that trial at the beginning, he now felt it was well justified. This was largely because of the groveling attitude of the defendants. If he had been in the dock (as indeed he certainly would have been if the war had gone the other way), the line that he would have taken was--'we do not recognize the competency of your court. We will await the verdict of the German people, whom we served, in twenty or thirty years' time. You won the war; take your vengeance on us in whatever way you like. We do not recognize any authority above the rights of the German State.' But undoubtedly the enormity of the crimes had come as a surprise to the defendants themselves." The source for this is notes taken during a luncheon by Allen Campbell-Johnson.In November 1946 in a speech in the House of Commons he treated the Nuremberg Trials as a purgative. He portrayed it as a substitute for the persecution or prosecution of ordinary Germans.

Also in 1946, probably sometime in November, Lord Ismay was with Churchill when he heard the results of the Nuremberg War Trials. Ismay was close to Churchill, senior military man during the War, and later the first military head of NATO. He said: "I happened to be with him at Chartwell when the results of the Nuremberg Trials of the Nazi war criminals were published 'it shows' he remarked, 'that if you get into a war, it is supremely important to win it. You and I would be in a pretty pickle if we had lost.'"

Raustiala on "The Limits of International Law"

Kal Raustiala has a recent article to be published in the Georgia Journal of International and Comparative Law on Jack Goldsmith and Eric Posner's "The Limits of International Law." Here is the abstract:

Jack Goldsmith and Eric Posner's "The Limits of International Law" is not an uplifting read for most international lawyers, who are trained to think international law makes an important difference and generally believe more international law is better. The authors' overarching message is that international law is an endogenous outgrowth of individual state interests, and almost never a constraint on those interests. International law can, under special conditions, promote limited cooperation. But its ability to do so is very restricted. Goldsmith and Posner come to these conclusions via an analysis grounded in rational choice theory. In international relations this approach is mainstream. Despite their greater emphasis on the limitations of international institutions, Goldsmith and Posner's analysis is largely consistent with a very large body of existing work in international relations, and is even more derivative of it than they, or their readers, may realize. Limits nonetheless advances some important and trenchant criticisms of prevailing scholarship. And its positive analytic approach to state behavior reflects the burgeoning attention to theories and approaches drawn from political science and economics. Despite these virtues the book is unjustifiably skeptical about international law. Focusing particularly on its chapters on the dynamics of international cooperation, I argue in this review that Limits' relentless rationalism, while clarifying, fails to explain much of the texture of international cooperation - in large part because it fails to take proper account of the last twenty years of research in international relations, much of which highlights complex but important feedbacks between international institutions and domestic politics, preferences, and institutions.

Part I contextualizes the book's arguments within political science scholarship. Part II then shows that even within the rationalist tradition in political science that the authors draw on there is far less skepticism about the stability of cooperation than we see in Limits. That relative enthusiasm, moreover, is not at all grounded in flights of normative fancy or shoddy analysis, but rather in advances in the literature on institutional design in political science. Part III argues more generally that our understanding of the role of law in world politics can be enriched by accounting for a major strand of theory that they largely ignore: liberal international relations theory. Domestic politics seeps into Goldsmith and Posner's analysis here and there, but a more systematic incorporation would improve their arguments substantially. I illustrate the value of such an approach with a brief discussion of a vexing topic examined in Limits: the choice between binding and non-binding international agreements.

Double Duty: Guest Blogging at PrawfsBlawg

This week I'll be one of a number of guest-bloggers over at PrawfsBlawg. This is an opportunity for me to post about stuff not directly related to international law. But never fear, I will continue to be posting here as well. Should be fun. Please check in.

L.A. Times Details Altmann Litigator's Strategy

Nice puff piece in the L.A. Times about Randol Schoenberg, the lawyer who brought the claim on behalf of Maria Altmann to recover five Gustav Klimt paintings. Interesting read on the gamble that Schoenberg took in bringing the case and the unlikely success story of a complete win for his client. I have posted about the litigation here and here.

International Law Guarantees University Financial Aid

Or so the plaintiffs in Ficken v. Rice (D.D.C. Jan. 17, 2006) argue. Interesting strategy. If a university committee denies your child's application for financial aid, just make a federal case out of it. And for good measure, include Secretary of State Condoleeza Rice as a defendant and claim a violation of the Convention on the Rights of the Child and the U.N. Declaration of Human Rights.

In Ficken, plaintiff's son applied for and was denied financial aid at the American International School of Bucharest in Romania. So he sued and claimed an international law violation. Judge Urbina wasn't buying it. "Though the U.N. Declaration may be considered evidence of customary international law, it is not legally binding or self-executing... [and] the U.N. Convention offers no support for the plaintiffs because it has not been ratified by the United States."

The decision is not yet available online, but you are not missing much.

Sunday, January 22, 2006

The Answer to Piracy: the U.S. Navy. But What About Terrorism?

Cool! A U.S. Navy vessel has boarded and captured a suspected pirate operating off the coast of Somalia. As Roger noted a while ago here, pirates recently chased a cruise liner in the same waters. It looks like the U.S. Navy is on the case.

But what legal authority does the U.S. Navy have to board and capture a suspected pirate on the high seas? More to the point, after catching them, what legal authority does the U.S. have to prosecute them and seize their ship?

Here is yet another way that international law can be useful. The customary law of the sea, which was probably codified in Articles 102-107 of the UN Convention on the Law of the Sea, appears to govern this situation. Article 102 states:

On the high seas . . . every State may seize a pirate ship . . . arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.Of course, the U.S. is not a party to the Law of the Sea Treaty. Thus, if it sought to prosecute and punish the pirates in its domestic courts (which it can do under the treaty), it would have to apply customary international law. They might even convene a special military commission and apply the customary law to prosecute them.

In fact, it sounds a lot like how the U.S. military in general is trying to deal with terrorists. Unfortunately, the international consensus on terrorists is far more elusive than that with respect to pirates. So international law can only get you so far.

The Message of Jihad on Trial at Old Bailey

The trial of Abu Hamza in London is a subject that is riveting the English press, but amazingly is largely ignored back here in the United States. Hamza is an imam at London's Finsbury Park mosque who is accused of encouraging terrorism, death, and murder of non-Muslims. He is on trial for 15 charges, including nine counts for soliciting murder, four counts for words or deeds that stir up racial hatred, and one count for possessing material useful in committing acts of terror.

The BBC is doing an outstanding job of covering the trial, with dozens of stories that provide a fascinating glimpse of Hamza's venomous preaching. If you read the stories or watch the video, it is clear that Hamza has utter disdain for non-Muslims and openly advocates violence against them. A few of Hamza's sermons were recorded so we have full text transcripts of his vitriole. Here are themes outlined in his sermons:

1. Allah Sent Hitler to Kill Jews. "They [Jews] are enemies to one another and Allah has cursed them ... This is why he send [sic] Hitler for them. Jews they have nowhere to go, they are going to be buried in Palestine all of them." (Link).

2. Jews are Blackmailing the West. "Now all these dogs of the West they have to go now, none of them have condemned what Israel has done to the Muslims and the Palestinians.... Why they act like sugar daddy for Israel? Because they love the Israelis? No way! Because they hate them very much, but the Israelis know how to deal with them. They got a file for each one of these politicians, how much homosexual you are, how many money he has taken as bribe, whom his wife goes with, which child he has been abusing and they got all this against them. Jews know how to control people. This is how they know how to control our leaders. (Link) .

3. Killing Infidels Without Cause is Acceptable. "Killing a Kafir [infidel] for any reason you can say it is OK even if there is no reason for it....Make sure that the person who gave him the licence for that wine shop doesn't exist anymore on the earth. Finish him up. Give him Dawa. If he doesn't respect Dawa, kill him." (Link).

4. Israel Will Become a Graveyard. "The Jews will be destroyed, the state will be destroyed and some of the Jews will be running around hiding behind the trees and the stones and then they got cursed by the earth until there is not one of them left.... The Jews will never leave Palestine. The Jews will be buried there.... It is decreed that it will be the biggest Jewish graveyard in the world.... We do not want the Jews to pull away from Palestine, but we want them to be buried there. This is God's decree..." (Link).

5. All Sinners are Targets. "Every place of iniquity, every brothel, every video shop which is selling naked, for the victorious party is a target.... If anybody protect these kufr (unbeliever) places and these fisq (sinful) places is a target... Anybody who propagate these kind of thing among Muslims is a target." (Link).

6. Suicide Bombers are Martyrs. "It is not called suicide, this is called martyrdom.... If we do not use terrorism or torture what are we going to use?" (Link).

7. We Must Bleed the Enemy. "You have to bleed the enemy. Then, after you have done that, obviously you will be on the run." (Link).

8. You Must Kill Them With Mice Poison, Not WMDs. "There is no real need to go and train for tanks and aeroplanes... where are you going to find these... you can't buy these in the market... you cannot make them yourselves... You cannot do it by chemical weapons, you have to do it by mice poison." (Link).

9. Allah Loves Blood. "There is no drop of liquid loved by Allah more than the liquid of blood." (Link).

It is difficult to fathom that two Underground stops from King's Cross Station we have an imam at a mosque in North London who is preaching such violent hatred. American and English sensibilities give a very wide berth for the freedom of speech. But these words, if proven to be uttered by Hamza, are criminal. They directly incite terrorism, murder, and death of non-Muslims. They are antithetical to a free and civil society and are deserving of criminal punishment.